The Colorado Supreme Court has agreed to hear a bizarre case that combines jury nullification, juror tampering and a grisly murder that left five people dead. And one of its main protagonists is a man known for appearing in public with an oversized hand flipping a bird emblazoned with the slogan "Fuck Cops."
The case dates back to July 2015, when Eric Brandt, the "Fuck Cops" protester, and a number of activists, including his friend Mark Iannicelli, set up camp outside Lindsey-Flanigan Courthouse in Denver and began passing out fliers sporting phrases such as "Your Jury Rights: True or False? What rights do you have as a juror that THE JUDGE WON'T TELL YOU" and "All You Need to Know About Jury Nullification (but were prevented from hearing)."
What is jury nullification? Here's the explanation provided at the time by attorney David Lane, who's represented Brandt and Iannicelli since their first run-in with authorities on the matter: "One of the hallmarks of our country is that jurors have the power to not enforce bad laws, despite the fact that the prosecutor has proven guilt. You would see it when marijuana was illegal: Jurors would simply not convict people because they thought the law was unjust. It's a power jurors have and a power that judges and prosecutors take great pains to tell jurors they don't have. Libertarians and others believe jurors act as a bulwark between a free society and a tyrannical society — and they believe that jurors should take part in jury nullification if there's an unjust law."
Cut to August 26, 2015, when the courthouse was the setting for the trial of Dexter Lewis, who was due to be sentenced for killing five people at Fero's Bar & Grill three years earlier. Then-Denver district attorney Mitch Morrissey was seeking the death penalty, and city officials feared riots would break out if Lewis, a person of color, wound up with the ultimate sentence a few weeks after Aurora theater shooter James Holmes had been given life without the possibility of parole.
In this heightened atmosphere, the jury-nullification fliers no longer struck Denver police as benign. Hence the arrest of Iannicelli, followed several days later by a bust for Brandt, whose arrest affidavit noted that officers had determined the pamphlets "would be in violation of the Colorado Revised Statute regarding jury tampering."
Lane, for his part, saw these actions as a clear violation of the pair's free-speech rights. "They weren't talking about any particular case, and they didn't even know the Dexter Lewis case was in the building," he told us at the time. "They'd never heard of the Dexter Lewis case. They were giving this literature to anyone who was walking by, educating people about various rights and powers they have. And that's all they were doing. ... Mitch Morrissey should be ashamed of himself."
In the end, Lewis dodged the death penalty, too, earning a sentence identical to the one received by Holmes, and Denver didn't devolve into fiery chaos. But neither did the case against Brandt and Iannicelli go away. Speaking today, Lane says, "I filed a motion in Denver District Court to dismiss all charges on First Amendment grounds. That motion was granted, but Morrissey's office took it to the court of appeals. We won on the court of appeals. But now, Beth McCann" — Morrissey's successor as Denver DA — "is taking it up to the Colorado Supreme Court."
Why? Denver DA's Office spokesman Ken Lane, corresponding via email, explains, "We filed the petitions for writ of certiorari to the Colorado Supreme Court to get clarification on the definition of 'juror.' ... We believe the Colorado Court of Appeals defined 'juror' too narrowly in its published opinion dismissing the two defendants’ motions to dismiss the charges against them."
This issue is expanded upon in the writs, both of which are available below. The documents note: "The Court of Appeals ruled that the tampering statute applies only to 'attempts to improperly influence jurors or those selected for a venire [i.e., the jury pool] from which a jury in a particular case will be chosen.' That ruling comprises two related conclusions: The tampering statute is 'limited to attempts to influence a person’s vote, opinion, decision or other action in a specifically identifiable case'; and within the meaning of the tampering statute, the term 'juror' does not include people who have merely been summoned for jury service. It is limited to those chosen to serve on a particular case and 'those selected for a venire from which a jury in a particular case will be chosen.'"
The writ adds: "Both conclusions should be re-examined."
According to Ken Lane, "Whether or not to (continue to) prosecute these two cases, even assuming a 'favorable' Supreme Court ruling, is a separate issue. The purpose of our petitions to the Supreme Court is to get a clarification of the law."
If that happens, David Lane sees some potential positives.
"I'm not particularly worried that the Colorado Supreme Court is going to reinstate the charges against Eric and Mark," he says. "That's sort of an easy issue. But if the court addresses whether you have to target jurors in a specific case, it could make some good law."
Prior to Lewis's sentencing, he goes on, "there were signs in the plaza saying, 'No Death Penalty for Dexter Lewis.' That's designed to be seen by jurors and is targeting a specific case. So is that jury tampering or free speech? What if a billboard was erected saying, 'No Death Penalty for John Smith'? Is that jury tampering or free speech? What if you ran an ad on TV during what you assume are the jurors' favorite shows — maybe CSI — and you ask John Smith to be acquitted. Is that jury tampering or free speech? Where is the line drawn? Clearly, you can't buttonhole a juror walking into the courthouse, talk to them about a specific case and give them information to consider outside the scope of the evidence — such as, 'That last witness is a notorious liar.' That would be jury tampering. But where the line is drawn on free speech hasn't really been defined by the courts."